Escalante v. Commissioner of Social Security
ORDER re 1 Complaint filed by Dianne Marie Escalante. The decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter final judgment in favor of the Commissioner and close the case. Signed by Magistrate Judge Julie S. Sneed on 7/22/2016. (LBL)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
DIANNE MARIE ESCALANTE,
Case No: 6:15-cv-796-Orl-JSS
COMMISSIONER OF SOCIAL
Plaintiff, Dianne Marie Escalante, seeks judicial review of the denial of her claim for a
period of disability, disability insurance benefits, and supplemental security income. As the
Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed
proper legal standards, the decision is affirmed.
Plaintiff filed an application for a period of disability, disability insurance benefits, and
supplemental security income on July 25, 2011, alleging disability beginning June 29, 2011. (Tr.
20, 218–229.) The Commissioner denied Plaintiff’s claims both initially (Tr. 89–109) and upon
reconsideration. (Tr. 111–138.) Plaintiff then requested an administrative hearing. (Tr. 167–168.)
Upon Plaintiff’s request, on September 11, 2013, the ALJ held a hearing at which Plaintiff
appeared and testified. (Tr. 43–88.) Following the hearing, on November 8, 2013, the ALJ issued
an unfavorable decision finding Plaintiff not disabled and, accordingly, denied Plaintiff’s claims
for benefits. (Tr. 17–42.) Subsequently, Plaintiff requested review from the Appeals Council,
which the Appeals Council denied. (Tr. 7–12, 15–16.) Plaintiff then timely filed a complaint with
this Court. (Dkt. 1.) The case is now ripe for review under 42 U.S.C. § 405(g) and 42 U.S.C. §
Plaintiff, who was born in 1972, claimed disability beginning on June 29, 2011. (Tr. 20,
220, 224.) Plaintiff has a high school education, plus two years of college education, during which
she earned an associate’s degree in architectural drafting and design. (Tr. 48.) The ALJ
determined that Plaintiff could not perform her past relevant work as a drafter, waitress,
telemarketer, or telemarketer supervisor. (Tr. 33.) Plaintiff alleged disability due to neoplastic
impairments, diverticulitis, neurological impairments, cardiovascular impairment, vertigo,
musculoskeletal impairments, mental impairment, and chronic pain. (Tr. 25.)
The ALJ summarized Plaintiff’s treatment records spanning from June 29, 2011, Plaintiff’s
alleged onset of disability, through fall 2013. (Tr. 25–29.) On June 29, 2011, Plaintiff was
admitted to the hospital due to dizziness and facial pain. (Tr. 25, 389.) A magnetic resonance
imaging scan (“MRI”) of Plaintiff’s brain revealed a tumor in her left auditory canal. (Tr. 25, 446.)
Upon Plaintiff’s discharge, on July 5, 2011, the notes of Plaintiff’s treating physician indicate that
Plaintiff had left facial nerve paralysis, migraine headaches, anxiety, oral thrush, and anemia. (Tr.
25, 389.) It was recommended that Plaintiff schedule a follow-up appointment with a neurologist.
On July 26, 2011, Plaintiff was examined for mental health treatment by Dr. Najib Kirmani.
(Tr. 454–457.) At the examination, Plaintiff reported that she was sad, withdrawn, anxious,
phobic, panicked, and had difficulty sleeping, including having nightmares. (Tr. 455.) Dr.
Kirmani found that Plaintiff was neat, clean, cooperative, and “normoactive” (rather than “slowed”
or requiring a “wheelchair”). (Tr. 456.) Further, Dr. Kirmani found Plaintiff’s thought patterns
and perceptions to be clear, coherent, and goal-oriented. (Id.) Dr. Kirmani diagnosed Plaintiff
with depressive and anxiety disorders. (Tr. 454.)
After her hospitalization, on October 13, 2011, Plaintiff was examined by neurologist Dr.
Phillip St. Louis regarding her dull discomfort in her left retromastoid, weakness on the left side
of her face, difficulty hearing in her left ear, and imbalance. (Tr. 473, 477.) Dr. St. Louis noted
that her gait was slightly impaired and that she had a history of migraines. (Tr. 473, 478.) He
diagnosed Plaintiff with a benign neoplasm (tumor) and cerebral artery occlusion without cerebral
infarction and recommended that Plaintiff seek consultation regarding gamma knife surgery to
remove the tumor. (Tr. 479.) About a week later, Plaintiff reported to Dr. St. Louis that she
blacked out at work, was experiencing memory loss, and that her speech was slurring. (Tr. 571–
572.) In October of 2011, Plaintiff was examined by Dr. Ahmadi Zaman, an internal medicine
practitioner and Plaintiff’s primary care physician. (Tr. 506–507.) Dr. Zaman assessed Plaintiff
as having acoustic neuroma, status-post coronary vascular disease (“CVA’), high blood pressure,
and vertigo. (Tr. 507.) Plaintiff had a follow-up examination with Dr. Zaman a couple of weeks
later at which Plaintiff reported having “ministrokes,” resulting in her admission to the emergency
room. (Tr. 505.)
In late November 2011, Plaintiff underwent gamma knife surgery and was discharged in
“good condition.” (Tr. 573.) After her surgery, in December 2011, Plaintiff was examined by Dr.
Michael Montejo, who reported that Plaintiff stated that her headaches, dizziness, and tinnitus in
her left ear have were severe. (Tr. 492.) On January 1, 2012, Plaintiff visited the emergency room
with a headache, nausea, and dizziness. (Tr. 534–535.) In January 2012, Plaintiff reported to Dr.
Zaman that she had dizziness and a cough. (Tr. 501–502.) In February 2012, Plaintiff visited Dr.
Zaman and reported that her antidepressants, steroids to treat her facial pain, and medication to
treat her vertigo had improved her symptoms. (Tr. 500.)
In March 2012, the Florida Department of Health referred Plaintiff to Dr. Kirmani to
determine Plaintiff’s eligibility for disability benefits. (Tr. 514–516.) Dr. Kirmani noted that
Plaintiff was “appropriately dressed and groomed,” cooperative, and had no abnormality in her
gait or posture. (Tr. 514.) As far as her activities, Plaintiff reported to Dr. Kirmani that she can
shop for groceries, prepare simple meals, and do some household chores. (Tr. 514–515.) Dr.
Kirmani concluded that Plaintiff did “not manifest a psychotic reaction” and had no deterioration
in personal habits or intellectual capabilities, but he diagnosed her with depressive disorder. (Tr.
Also in March 2012, Plaintiff reported to Dr. Zaman that she had gastrointestinal bleeding
and Dr. Zaman assessed diverticulitis, rectal bleeding, and Bell’s palsy. (Tr. 526–527, 549.) She
was hospitalized in April 2012 because of abdominal pain and rectal bleeding, as Dr. Zaman
recorded in his treatment notes. (Tr. 548.) Dr. Zaman prescribed antibiotics and recommended an
abdominal CAT scan. (Id.) In May 2012, Dr. Zaman treated Plaintiff, but sent her to the
emergency room for fluids because she had abdominal pain and rectal bleeding. (Tr. 546–547.)
In June 2012, in a follow-up examination by Dr. Zaman, Plaintiff indicated that she still
experienced abdominal pain, but that one of her prescriptions was improving her symptoms. (Tr.
545.) Her medication for vertigo, however, was not helping her symptoms. (Id.) On July 30,
2012, Plaintiff had hemorrhoidal banding surgery for internal hemorrhoids, which was causing her
rectal bleeding. (Tr. 564.) In July 2012, Dr. Zaman noted that Plaintiff reported that her abdominal
discomfort had resolved due to her use of her prescription, although she continued to have
migraines. (Tr. 544.)
In follow up examinations with Dr. Kirmani, for the period from January to July 2012, Dr.
Kirmani reported significant progress with Plaintiff’s immobility, depression, and anxiety and
determined that her current treatment, including medications, should be extended for six months.
In July and August of 2012, Plaintiff reported to Dr. St. Louis that her headaches, nausea,
vertigo, and speech problems had worsened since her surgery. (Tr. 577, 579–580.) Dr. St. Louis’s
assessments in August 2012 were benign neoplasm and cerebral artery occlusion without cerebral
infarction and he advised Plaintiff to follow up with a radiation oncologist and a neurologist for
her migraines and vertigo. (Tr. 580.) Plaintiff was examined by Dr. Zaman in the late summer
through early fall of 2012, during which Plaintiff reported that her medication for migraines was
not alleviating her symptoms, she had pain her in legs, acid reflux, and had fallen due to her vertigo.
(Tr. 583–588.) An MRI performed in August 2012 showed “[n]o significant change” in her tumor.
Plaintiff was examined by Dr. Lata Bansal, a neurology consultant, in November 2012
regarding her migraines, numbness and paralysis in her face, and hearing difficulties. (Tr. 590.)
Dr. Bansal determined that Plaintiff’s migraines could be of a “vascular” or “rebound” nature and
could be worsened by stress. (Tr. 591.) Dr. Bansal recommended a different course of medication
to treat Plaintiff’s migraines. (Tr. 591–592.) In April 2013, in a follow-up examination, Plaintiff
reported that, having followed Dr. Bansal’s prescription recommendation, she was “doing much
better,” was having one to two headaches per month, each lasting up to three days, but was having
some difficulty with her speech. (Tr. 593.)
Dr. Kirmani, in a follow-up examination for the period from September 2012 through
March 2013, reported that Plaintiff’s progress with her mood and anxiety disorders was moderate
and that Plaintiff complained of experiencing vertigo. (Tr. 636, 644.)
In notes from a February 2013 examination by Dr. Zaman, Dr. Zaman noted that Plaintiff’s
vertigo medication makes her drowsy and therefore she only takes it at nighttime, but that treatment
for her nerve damage was improving her condition. (Tr. 679.) Plaintiff was admitted to the
hospital in May 2013 for slurred speech. (Tr. 596–597.) A computerized tomography (“CT”) scan
was performed and it revealed no evidence of an acute stroke. (Id.) While admitted, Plaintiff
tested positive for benzodiazepine and marijuana and left the hospital against medical advice. (Id.)
In the spring and summer of 2013, Plaintiff reported experiencing back pain, dizziness, migraines,
and vertigo. (Tr. 674–677.) Dr. Zaman, in April and June 2013 treatment notes, reported that
Plaintiff complained of vertigo, which he noted is due to her “nerve palsy” and history of having
a brain tumor. (Tr. 675, 677.) In August 2013, she complained of having six to seven migraines
per month, each lasting three to four days. (Tr. 700.) In September 2013, Plaintiff reported falling
and sprained her foot and ankle. (Tr. 716–720.)
At the hearing before the ALJ, held in September 2013, Plaintiff testified that her height is
five feet and two inches and her weight is about 185 pounds. (Tr. 49.) She testified that she
worked as a telemarketer in June 2011 and returned to that position after being hospitalized, which
was after her alleged disability onset date. (Tr. 52, 56.) She testified that she lost this job and has
had difficulties with other telemarketing jobs because of her difficulty with her speech and meeting
the positions’ “production” requirements. (Tr. 52–56, 79.) At the time of the hearing, she worked
as a political surveying telemarketer for about twenty hours per week, getting paid $7.67 per hour.
Plaintiff testified that, since her gamma knife surgery, her migraines have worsened. (Tr.
62–63.) She testified that when Dr. Bansal changed her migraine medications, the change helped
temporarily, but then they returned and she has migraines about three to four times a month, each
lasting two to three days. (Tr. 63–64.) She also takes medication for her nausea and vertigo. (Tr.
64.) As to her internal hemorrhoid surgery, Plaintiff testified that it was “partially successful” and
that the problem persists and her current treatment is not helping. (Tr. 66.) She testified that she
lost most of her hearing in her left ear due to her gamma knife surgery. (Tr. 67.) She also has pain
in her neck, back, and knees, which affects her ability to stand. (Id.)
As to her daily activities, Plaintiff testified that she is able to sit for ten to twenty minutes
and stand for five minutes, but requires support from a cane to balance due to her vertigo and lower
back pain. (Tr. 68–69.) She requires assistance dressing and getting in and out of the shower, but
does some household chores and cooking. (Tr. 70–74.) When she is not working, she sits on the
couch with her feet up, but must shift positions due to her back pain. (Tr. 75.)
Finally, as to her depression, Plaintiff testified that Dr. Kirmani treats her for depression,
anxiety, and difficulty sleeping. (Tr. 77–78.) Dr. Kirmani, Plaintiff testified, is her treating
psychiatrist, but also examined her as part of her disability application. (Tr. 77.) She testified that
Ambien helps her sleep and that she has needed to increase her antidepressant. (Tr. 78.) She
testified that her depression stems from her facial paralysis and weight gain. (Id.)
The ALJ’s Decision
In rendering the decision, the ALJ concluded that Plaintiff had not performed substantial
gainful activity since June 29, 2011, the alleged disability onset date. (Tr. 22.) The ALJ considered
Plaintiff’s testimony that she has performed work after the alleged onset date and, at the time of
the hearing, was working as a political surveying telemarketer (Tr. 52–54, 59–60, 86), but
concluded that the wages Plaintiff was earning did not constitute gainful activity. (Tr. 22.)
Next, the ALJ determined that Plaintiff had the following severe impairments: CVA and
an affective disorder. (Id.) The ALJ considered Plaintiff’s impairments of left facial paralysis,
migraine headaches, a history of a back disorder, and a history of osteoarthritis of the hands, but
found them to be non-severe. (Id.) Notwithstanding the noted impairments, the ALJ determined
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”),
specifically Listing 12.04, which describes affective disorders. (Tr. 22–24).
The ALJ then concluded that Plaintiff retained a residual functional capacity (“RFC”) to
perform less than the full range of sedentary work. (Tr. 24.) Specifically, Plaintiff can ambulate
with a cane, occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl, but can
never climb ladders, ropes, or scaffolds, and must avoid concentrated exposure to extreme
temperatures, hazards, machinery, and heights. (Id.) Plaintiff is able to understand, remember,
and carry out simple instructions and perform simple, routine tasks. (Id.) In formulating Plaintiff’s
RFC, the ALJ considered Plaintiff’s subjective complaints and determined that, although the
evidence established the presence of underlying impairments that reasonably could be expected to
produce the symptoms alleged, Plaintiff’s statements as to the intensity, persistence, and limiting
effects of her symptoms were not fully credible. (Tr. 30–33.)
The ALJ determined that Plaintiff could not perform past relevant work as a drafter,
waitress, telemarketer, or telemarketer supervisor and that Plaintiff’s past work as a political
survey worker was not gainful activity. (Tr. 33, 84–85.) In so finding, the ALJ relied on the
vocational expert’s (“VE”) testimony. (Tr. 33.) At the hearing, the ALJ asked the VE whether an
individual who is Plaintiff’s age and has Plaintiff’s educational background and RFC would be
able to perform Plaintiff’s past relevant work. (Tr. 33, 85–86.) In response, the VE testified that
such an individual would not be able to perform Plaintiff’s past relevant work. (Tr. 33, 86.)1
Next, the ALJ stated that Plaintiff was 38 years old, as of the alleged onset date, and had a
high school education with an additional two years of college education. (Tr. 33–34.) Given
Plaintiff’s age, education, work experience, and RFC, the VE testified that Plaintiff could perform
other jobs existing in significant numbers in the national economy, such as a document preparer,
food and beverage order clerk, and ticket counter. (Tr. 34–35.) Accordingly, based on Plaintiff’s
age, education, work experience, RFC, and the testimony of the VE, the ALJ found Plaintiff not
disabled. (Tr. 35, 36.)
To be entitled to benefits, a claimant must be disabled, meaning that the claimant must be
unable to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results from anatomical,
physiological, or psychological abnormalities that are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques. Id. at §§ 423(d)(3), 1382c(a)(3)(D).
The Social Security Administration, in order to regularize the adjudicative process,
promulgated the detailed regulations currently in effect. These regulations establish a “sequential
evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If an
To be precise, the VE testified that such an individual could perform Plaintiff’s work as a political survey worker,
which Plaintiff was doing at the time of the hearing, but the ALJ determined that this work was not gainful activity
due to the wages she earned. (Tr. 22, 33, 86.)
individual is found disabled at any point in the sequential review, further inquiry is unnecessary.
Id. at § 416.920(a). Under this process, the ALJ must determine, in sequence, the following: (1)
whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant
has a severe impairment, i.e., one that significantly limits the ability to perform work-related
functions; (3) whether the severe impairment meets or equals the medical criteria of a Listing; and,
(4) whether the claimant can perform his or her past relevant work. If the claimant cannot perform
the tasks required of his or her prior work, step five of the evaluation requires the ALJ to decide if
the claimant can do other work in the national economy in view of the claimant’s age, education,
and work experience. Id. A claimant is entitled to benefits only if unable to perform other work.
Bowen v. Yuckert, 482 U.S. 137, 140–42 (1987); 20 C.F.R. § 416.920(g).
A determination by the Commissioner that a claimant is not disabled must be upheld if it
is supported by substantial evidence and comports with applicable legal standards. See 42 U.S.C.
§ 405(g). Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Miles v. Chater, 84 F.3d 1397, 1400
(11th Cir. 1996). While the court reviews the Commissioner’s decision with deference to the
factual findings, no such deference is given to the legal conclusions. Keeton v. Dep’t of Health &
Human Servs., 21 F.3d 1064, 1066 (11th Cir. 1994).
In reviewing the Commissioner’s decision, the court may not decide the facts anew, reweigh the evidence, or substitute its own judgment for that of the ALJ, even if it finds that the
evidence preponderates against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983). The Commissioner’s failure to apply the correct law, or to give the reviewing
court sufficient reasoning for determining that he or she has conducted the proper legal analysis,
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mandates reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining
whether the findings of the Commissioner are supported by substantial evidence and whether the
correct legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221
(11th Cir. 2002).
Plaintiff challenges the ALJ’s decision on the following grounds: (1) the ALJ erred by
finding Plaintiff’s migraines non-severe and failing to determine whether Plaintiff’s vertigo is
severe; (2) the ALJ failed to state the weight he afforded opinions of three of Plaintiff’s treating
physicians and failed to sufficiently state his reasons for discrediting a fourth treating physician’s
opinions; and (3) the ALJ erred by relying on the testimony of the VE because the ALJ’s
hypothetical did not adequately reflect Plaintiff’s limitations. (Dkt. 24.) For the reasons that
follow, none of these contentions warrant reversal.
Step Two Severity of Impairments Analysis
The ALJ concluded that Plaintiff had the severe impairments of CVA and affective
disorder, but that her impairments of left facial paralysis, migraines, history of back disorder, and
history of osteoarthritis in her hands were non-severe. (Tr. 22.) Plaintiff contends that the ALJ
erred by not addressing whether Plaintiff’s vertigo is a severe impairment and determining that
Plaintiff’s migraines were non-severe because these impairments more than minimally affected
her ability to perform work. (Dkt. 24 at 11–15.)
At step two of the evaluation process, the ALJ must consider the medical severity of the
claimant’s impairments. 20 C.F.R. § 404.1520(a)(4)(ii). When considering the severity of the
claimant’s medical impairments, the ALJ must determine whether the impairments, alone or in
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combination, significantly limit the claimant’s physical or mental ability to do basic work skills.
Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520(c)).
At the second step, the claimant bears the burden of proof that he or she suffers from a
severe impairment or combination of impairments. Gibbs v. Barnhart, 156 F. App’x 243, 246
(11th Cir. 2005). An impairment is not severe “only if the abnormality is so slight and its effect
so minimal that it would clearly not be expected to interfere with the individual’s ability to work,
irrespective of age, education or work experience.” McDaniel v. Bowen, 800 F.2d 1026, 1031
(11th Cir. 1986).
“Basic work activities” include: (1) physical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing,
hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4)
use of judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b)(1)–
If an ALJ finds that a claimant has a severe impairment, even if an ALJ errs in finding a
claimant’s additional impairments are non-severe, such error is harmless because the ALJ has
determined that step two of the analysis is met and proceeds in the disability analysis. Heatly v.
Comm’r of Soc. Sec., 382 F. App’x 823, 824-25 (11th Cir. 2010); Tuggerson-Brown v. Comm’r of
Soc. Sec., 572 F. App’x 949, 951 (11th Cir. 2014) (“Accordingly, even assuming that [claimant]
is correct that her additional impairments were ‘severe,’ the ALJ’s recognition of that as a fact
would not, in any way, have changed the step-two analysis, and she cannot demonstrate error
below.”); Burgin v. Comm’r of Soc. Sec., 420 F. App’x 901, 902–03 (11th Cir. 2011) (“Even
assuming the ALJ erred when he concluded [claimant’s] edema, sleep apnea, and obesity were not
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severe impairments, that error was harmless because the ALJ considered all of his impairments in
combination at later steps in the evaluation process.”).
The ALJ is, however, “required to consider all impairments, regardless of severity, in
conjunction with one another in performing the latter steps of the sequential evaluation.”
Tuggerson-Brown, 572 F. App’x at 951 (emphasis added). As examples, an ALJ’s statements that
he considered whether claimant’s impairment or combination of impairments met a Listing or that
he considered all symptoms in determining claimant’s RFC are sufficient “to demonstrate that the
ALJ considered all necessary evidence.” Id. (finding the ALJ’s discussion of the combined effects
of claimant’s impairments sufficient because the ALJ discussed the non-severe impairments in the
ALJ’s assessment of claimant’s RFC); Wheeler v. Heckler, 784 F.2d 1073, 1076 (11th Cir. 1986)
(emphasis in original) (quoting the ALJ and finding that it was “clear” that he ALJ considered
claimant’s impairments in combination because the ALJ stated that “‘based upon a thorough
consideration of all evidence, the ALJ concludes that appellant is not suffering from any
impairment, or a combination of impairments of sufficient severity to prevent him from engaging
in any substantial gainful activity’”). The ALJ’s failure to consider the combination of a claimant’s
impairments requires reversal. Hudson v. Heckler, 755 F.2d 781, 785 (11th Cir. 1985).
In this case, at step two of the sequential evaluation process, the ALJ found that Plaintiff
had severe impairments of CVA and affective disorder. (Tr. 22.) Thus, the ALJ found in Plaintiff's
favor at step two and proceeded with the other steps of the sequential evaluation process to
determine whether Plaintiff was disabled. Because the ALJ found that Plaintiff had severe
impairments and thus proceeded beyond step two, any error in failing to find that Plaintiff suffers
from additional severe impairments of migraines and vertigo was rendered harmless. Packer v.
Comm’r, Soc. Sec. Admin., 542 F. App’x 890, 892 (11th Cir. 2013).
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Further, at step three of the sequential process, the ALJ properly considered all of
Plaintiff’s relevant impairments and found that Plaintiff did not have an “impairment or
combination of impairments” that met or equaled a Listing, which is sufficient to show that the
ALJ considered the combined effect of Plaintiff’s impairments. (Tr. 22–23.) Hutchinson v. Astrue,
408 F. App’x 324, 327 (11th Cir. 2011); Jones v. Dep’t of Health & Human Servs., 941 F.2d 1529,
1533 (11th Cir. 1991). Also, the ALJ considered medical evidence relating to Plaintiff’s migraines
and vertigo when assessing Plaintiff’s RFC at step four of the sequential process. (Tr. 24–30.)
After considering Plaintiff’s treatment history, including treatment for migraines and vertigo, the
ALJ concluded that although Plaintiff’s “medically determinable impairments” could reasonably
cause Plaintiff’s alleged symptoms, her testimony as to the symptoms’ persistence, intensity, and
limiting effects was not credible. (Tr. 30.) Specifically, the ALJ found that the record evidence
showed that medication helped treat Plaintiff’s vertigo and migraines. (Tr. 30–31, 590, 593.)
Thus, the ALJ concluded as follows:
While it is reasonable to conclude that the claimant should have some pain and/or
limitations as a result of the effects of migraines and pain through the body, the
evidence as a whole does not substantiate any cause for such debilitating pain, as
described by the claimant, which would preclude all work activity. The record fails
to show that the claimant has required significant forms of treatment such as
additional surgery, nor does the record show such a marked diminished range of
motion or muscle atrophy as would accompany the alleged disability.
In sum, the ALJ sufficiently considered whether the combination of Plaintiff’s impairments
rendered Plaintiff disabled because the ALJ considered all of Plaintiff’s impairments, severe and
non-severe, at steps three and four of his analysis. Further, because the ALJ found that Plaintiff
has severe impairments, at step two of his analysis, the ALJ’s determination that Plaintiff’s
migraines and vertigo are non-severe, even if erroneous, was harmless. Accordingly, Plaintiff’s
first contention does not warrant reversal.
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Weight Accorded to Treating Physicians’ Opinions
Next, Plaintiff contends that the ALJ erred by failing to (1) state the weight he afforded to
the opinions of Plaintiff’s treating physicians Dr. St. Louis, Dr. Bansal, and Dr. Montejo, and (2)
sufficiently articulate his reasons for affording treating physician Dr. Zaman’s opinions little
weight. (Dkt. 24 at 17–19.)
Dr. St. Louis, Dr. Bansal, and Dr. Montejo
Plaintiff argues that the ALJ’s failure to state the weight he afforded the opinions of three
of Plaintiff’s treating physicians—Dr. St. Louis, Dr. Bansal, and Dr. Montejo—is reversible error.
(Id. at 17.)
Medical opinions are “statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity” of the claimant’s
impairments, including the claimant’s symptoms, diagnosis and prognosis, the claimant’s ability
to perform despite impairments, and the claimant’s physical or mental restrictions. Winschel v.
Comm’r of Soc. Sec., 631 F.3d 1176, 1178–79 (11th Cir. 2011) (internal quotation and citation
omitted); 20 C.F.R. § 404.1527(a)(2).
A treating physician’s opinion is “given substantial or considerable weight unless good
cause is shown to the contrary” and an ALJ must specify the weight given to the treating
physician’s opinion. MacGregor v. Bowen, 786 F.2d 1050, 1053 (11th Cir. 1986). However, there
is no rigid requirement that the ALJ specifically refer to every piece of evidence in his or her
decision, so long as the decision is not “a broad rejection” that leaves the court with insufficient
information to determine whether the ALJ considered the claimant’s medical condition as a whole.
Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005).
Thus, “[t]o the extent that the administrative law judge erred by failing to state with
particularity the weight assigned to [treating physicians’] medical opinions, the error is harmless”
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if it does not “affect the administrative law judge’s ultimate determination.” Hunter v. Comm’r of
Soc. Sec., 609 F. App’x 555, 558 (11th Cir. 2015) (finding that the ALJ’s decision was supported
by substantial evidence and, therefore, the ALJ’s failure to explicitly state the weight afforded to
treating physicians’ testimony was harmless error); Tillman v. Comm’r, Soc. Sec. Admin., 559 F.
App’x 975, 975–76 (11th Cir. 2014) (recognizing harmless error analysis in the context of an
ALJ’s failure to address a treating source’s opinion and concluding that “when the ALJ’s error did
not affect its ultimate findings, the error is harmless, and the ALJ’s decision will stand”); Caldwell
v. Barnhart, 261 F. App’x 188, 191 (11th Cir. 2008) (finding that the ALJ’s failure to state the
weight given to a physician’s opinions was harmless error because the opinions did not otherwise
contradict the ALJ’s findings); Wright v. Barnhart, 153 F. App’x 678, 684 (11th Cir. 2005)
(finding harmless error for the ALJ’s failure to explicitly state what weight he afforded to a number
of physicians’ medical opinions when the opinions did not directly contradict the ALJ’s findings).
First, as to Dr. Bansal, Plaintiff was treated by Dr. Bansal, a neurology consultant,
beginning in November 2012 for Plaintiff’s migraines. (Tr. 590–593.) As Dr. Bansal’s November
2012 treatment notes show, Plaintiff sought treatment from Dr. Bansal after her gamma knife
surgery because her migraines worsened. (Tr. 590.) Dr. Bansal noted that Plaintiff treated her
migraines with Floricet and her nausea and vertigo with Phenergan and that “[s]tress may be
contributing to her symptoms.”
She recommended that Plaintiff take the
prescription Topamax. (Tr. 592.) In April 2013, Plaintiff visited Dr. Bansal for a follow-up
appointment, at which Dr. Bansal noted that although Plaintiff was still experiencing migraines
and nausea, she was “doing much better,” only having one to two headaches per month, and “noted
a significant improvement” from using Topamax. (Tr. 593.) Dr. Bansal recommended that
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Plaintiff increase her dosage of her medication and would prescribe her a separate prescription “as
The ALJ summarized Dr. Bansal’s treatment records (Tr. 29) and explicitly considered
them, although he did not mention Dr. Bansal by name, in making his credibility determination as
to Plaintiff’s pain testimony. (Tr. 30–31.) Specifically, the ALJ stated that he considered
Plaintiff’s treatments for her pain and symptoms and concluded that, although this treatment
“would normally weigh somewhat in claimant’s favor, the record also reveals that the treatment
has generally been successful in controlling these symptoms.” (Tr. 30.) The ALJ cited a number
of instances in the record in support of this statement, including Dr. Bansal’s treatment records,
when he discussed the improvement in Plaintiff’s migraine symptoms based on treatment with
Floricet and Topamax. (Tr. 31.) Thus, “although the administrative law judge did not specifically
identify [Plaintiff’s] treating physicians by name, the judge summarized [Dr. Bansal’s] treatment
notes” and relied on Dr. Bansal’s treatment notes in reaching his credibility determination as to
Plaintiff’s pain testimony, indicating that he fully credited Dr. Bansal’s opinions. Hunter, 609 F.
App’x at 558.
Furthermore, the ALJ’s ultimate determination would not differ had he explicitly stated the
weight he afforded Dr. Bansal’s opinions because the ALJ’s decision relies on Dr. Bansal’s
treatment notes to determine that Plaintiff’s pain testimony was not credible because her
medications offered her more relief than her testimony indicated. (Tr. 30–31.) The ALJ’s decision
shows that he considered and fully credited Dr. Bansal’s opinions and any harm caused by the
ALJ’s failure to specify the weight he accorded Dr. Bansal’s opinions was harmless.
Second, Dr. St. Louis, a neurologist, examined Plaintiff in October 2011, after she was
hospitalized for facial numbness and dizziness. (Tr. 473, 477.) Dr. St. Louis examined Plaintiff,
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performed an MRI, determined that Plaintiff had a tumor, and recommended that she undergo
gamma knife surgery to remove the tumor. (Tr. 476, 479.) After her surgery, Plaintiff saw Dr. St.
Louis regarding her hearing loss in her left ear and increased migraines. (Tr. 575–576, 579.) The
ALJ summarized Dr. St. Louis’s treatment records (Tr. 25–26) and relied on them in his
determination that Plaintiff’s pain testimony was not fully credible, stating that Dr. St. Louis’s
treatment notes did not reveal any findings to support Plaintiff’s pain testimony. (Tr. 32–33.)
Specifically, the ALJ considered Dr. St. Louis’s August 2012 treatment notes in which Dr. St.
Louis found that Plaintiff was “well developed,” “well nourished,” alert, oriented, and had a
normal speech pattern, gait, reflexes, and range of motion. (Tr. 32–33, 579.) Further, Dr. St. Louis
referred Plaintiff to Dr. Bansal for treatment of her migraines. (Tr. 580.) “Although the ALJ did
not explicitly state what weight he afforded the opinions of [Dr. St. Louis] none of [his] opinions
directly contradicted the ALJ’s findings, and, therefore, any error regarding their opinions is
harmless.” Wright, 153 F. App’x at 684. Rather than contradict his findings, the ALJ relied on
Dr. St. Louis’s findings to support his credibility determination regarding Plaintiff’s pain
testimony. (Tr. 32–33.) Accordingly, the ALJ’s failure to specify the weight he accorded Dr. St.
Louis’s opinions was harmless error because the ALJ’s determination would not differ had the
weight afforded been explicitly stated.
Finally, as to Dr. Montejo, a radiology specialist, Plaintiff was referred to Dr. Montejo by
Dr. St. Louis for gamma knife surgery to remove her tumor. (Tr. 496.) In November 2011, Dr.
Montejo reported that Plaintiff complained of facial weakness on the left side of her face and
ringing in her left ear. (Id.) He noted her history of migraines and previous facial plastic surgery.
(Id.) In his notes, he stated that her tumor was “likely the root” of Plaintiff’s facial numbness and
dizziness and he recommended surgery. (Tr. 497–498.) After Plaintiff’s December 2011 gamma
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knife surgery, Dr. Montejo examined Plaintiff, noting that her “chronic pain syndrome and
headaches . . . are not clearly worse,” although her hearing and vertigo may have worsened due to
inflammation. (Tr. 493.) He prescribed her steroids to treat her inflammation and suggested that
she consult her primary care physician regarding the propriety of taking multiple prescriptions to
treat her migraines. (Id.)
Although the ALJ did not specifically identify the weight he accorded Dr. Montejo’s
opinions, the ALJ’s decision summarizes Dr. Montejo’s medical reports. (Tr. 27.) Therefore, it
is clear that the ALJ properly considered Dr. Montejo’s findings and did not discount his opinion.
In fact, the ALJ relied on the chronology of Plaintiff’s impairments, as shown through her
treatment records, including her visits to Dr. Montejo pre- and post-surgery, to support his
determination that Plaintiff’s pain testimony was not supported by the record. (Tr. 30–31.) Thus,
the ALJ’s failure to specify the weight afforded to Dr. Montejo’s opinions was harmless because
Dr. Montejo’s opinions “do not  contradict the ALJ’s findings.” Caldwell, 261 F. App’x at 191.
The ALJ reviewed Dr. Zaman’s “Physical Medical Source Statement,” prepared on August
29, 2013. (Tr. 670–673.) The ALJ noted that Dr. Zaman determined that Plaintiff could sit and
stand or walk for less than two hours in an eight-hour workday and would be unable to walk for
any distance. (Tr. 32, 671–672.) He found that Plaintiff would need to take four to five
unscheduled breaks per day for ten to fifteen minutes per break, could not sit for long periods of
time, and could never twist, stoop, bend, crouch, squat, or climb stairs or ladders. (Tr. 671–672.)
Further, although the ALJ found that Plaintiff would have “significant limitations” with reaching
or handling objects, he found that she could frequently grasp, turn, and twist objects. (Tr. 672.)
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The ALJ afforded Dr. Zaman’s medical source statement “little weight” because it
appeared that he took her subjective complaints of pain as true, but, as the ALJ determined,
Plaintiff’s pain testimony was discredited by the medical evidence. (Tr. 32.) Further, the ALJ
found that Dr. Zaman’s source statement and underlying treatment records “fail to reveal the type
of significant or clinical and laboratory abnormalities one would expect if [Plaintiff] were in fact
disabled, and [Dr. Zaman] did not specifically address this weakness.” (Id.) Plaintiff argues that,
contrary to the ALJ’s conclusion, there is medical evidence showing that Plaintiff’s pain is as she
alleges and, therefore, Dr. Zaman’s reliance on her reports of pain was proper. (Dkt. 24 at 18–19.)
A medical source statement is “a standardized questionnaire used to ascertain a physician’s
opinion on the claimant’s physical or mental limitations.” Markuske v. Comm’r of Soc. Sec., 572
F. App’x 762, 765, n.2 (11th Cir. 2014). Medical source statements are considered by an ALJ
when evaluating disability and evaluate what a claimant “can still do despite” the claimant’s
impairments, based on the claimant’s medical history, clinical findings, laboratory findings,
diagnoses, treatment, response to treatment, and prognosis. 20 C.F.R. § 404.1513(b)(6).
A physician’s statements in a medical source statement regarding “issues reserved to the
Commissioner” are not medical opinions, which are entitled to controlling weight under 20 C.F.R.
§ 404.1527(a)(2) and (c), “but are, instead, opinions on issues reserved to the Commissioner
because they are administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” Id. at § 404.1527(d)(1); Miles v. Comm’r Soc. Sec., 469
F. App’x 743, 745 (11th Cir. 2012) (“[A] medical source’s statement that a claimant is ‘unable to
work’ or ‘disabled’ does not bind the ALJ, who alone makes the ultimate determination as to
disability under the regulations.”). Thus, although an ALJ considers a physician’s statements
about a claimant’s RFC, for example, the ALJ does “not give any special significance” to the fact
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that a statement is from a claimant’s treating physician and “the final responsibility for deciding
these issues is reserved to the Commissioner.” 20 C.F.R. § 404.1527(d)(2)–(3); Lawton v. Comm’r
of Soc. Sec., 431 F. App’x 830, 834 (11th Cir. 2011) (“A doctor’s opinion on dispositive issues
reserved to the Commissioner, such as whether the claimant is disabled or unable to work, is
excluded from the definition of a medical opinion and is not given special weight, even if it is
offered by a treating source, but the ALJ should still consider the opinion.”).
As to the portions of the physician’s opinion that do not involve issues reserved to the
Commissioner, a treating physician’s opinions are “given substantial or considerable weight unless
good cause is shown to the contrary.” MacGregor, 786 F.2d at 1053. An ALJ’s failure “to clearly
articulate the reasons for giving less weight to the opinion of a treating physician” is reversible
error. Lewis v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). Good cause for giving a treating
physician’s opinion less weight “exists when the: (1) treating physician’s opinion was not bolstered
by the evidence; (2) evidence supported a contrary finding; or (3) treating physician’s opinion was
conclusory or inconsistent with the doctor’s own medical records.” Phillips, 357 F.3d at 1240-41;
see 20 C.F.R. § 404.1527(c)(2) (stating that more weight is given to a claimant’s a treating
physician if the treating physician’s opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence.”).
Here, as to the portions of Dr. Zaman’s medical source statement that made conclusions
reserved to the Commissioner, e.g. that Plaintiff’s symptoms and limitations were consistent with
her impairments (Tr. 673), these portions are not medical opinions. 20 C.F.R. § 404.1527(a)(2).
As such, although the ALJ was required to consider these portions, he was not required to afford
them significant weight because they were not medical opinions that are afforded such weight. Id.
at § 404.1527(d). However, as to the portions of Dr. Zaman’s medical source statement entitled
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to controlling weight, contrary to Plaintiff’s assertion, the Court finds that the ALJ adequately
explained his reasons for giving Dr. Zaman’s opinion less weight. The ALJ found that Dr.
Zaman’s own treatment notes did not reveal the sort of condition that would cause the physical
limitations Dr. Zaman reported in his medical source statement and that there was record evidence
discrediting Plaintiff’s allegations as to the severity, intensity, and persistence of her symptoms.
Specifically, although Dr. Zaman’s 2013 treatment records for Plaintiff indicated that she
was having pain in her back and shoulders, vertigo, migraines, sinus infections, upper respiratory
infections, and hemorrhoids, Dr. Zaman advised her to continue with her pain medications, noted
that her sinus infections and upper respiratory infections were treated with antibiotics, and referred
her to specialists as needed. (Tr. 674–682.) Further, the evidence shows that she had a surgery
related to her hemorrhoids and that medication helped resolve her abdominal discomfort. (Tr. 544,
564.) Dr. Bansal’s records show that her recommendations as to prescriptions for Plaintiff’s
migraines helped Plaintiff (Tr. 593), although Plaintiff testified that the improvement did not
endure. (Tr. 80, 593.) Also, the ALJ considered Plaintiff’s testimony regarding her daily activities,
finding that they are “not limited to the extent one would expect given the complaints of disabling
symptoms and limitations” and show that Plaintiff worked after her alleged disability onset date,
including at the time of the hearing. (Tr. 30.)
Thus, the ALJ’s determination that Dr. Zaman’s opinions should be accorded little weight
because they was inconsistent with his treatment notes and other record evidence is supported by
the record. See Brown v. Comm’r of Soc. Sec., 442 F. App’x 507, 512 (11th Cir. 2011) (finding
that “the ALJ had good cause not to give controlling weight” to a treating physician’s opinions
because they did not refer to his treatment records, did not “adequately explain his opinions,” and
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in fact conflicted with his treatment records); Markuske, 572 F. App’x at 765-66 (finding that the
ALJ’s discrediting a treating physician’s medical source statement was supported by substantial
evidence because the physician’s treatment notes and other record evidence contradicted the
medical source statement). Finally, it should be noted that Dr. Zaman completed his medical
source statement a couple of weeks prior to Plaintiff’s hearing before the ALJ, at which time
Plaintiff was working, although the ALJ determined that her employment was not gainful. (Tr.
22, 52–54, 59–60, 86.) See Farnsworth v. Soc. Sec. Admin., 636 F. App’x 776, 781 (11th Cir.
2016) (affirming the ALJ’s discounting treating physicians’ assessments of claimant’s limitations
because “they were not supported by many treatment notes and were contradicted by the fact that
[claimant] was actually working for the last eight months.”).
Therefore, the ALJ sufficiently articulated “good cause” for giving Dr. Zaman’s opinions
little weight because the evidence supports the ALJ’s reasoning that Dr. Zaman’s treatment records
and other record evidence contradicted his opinions in his medical source statement. Phillips, 357
F.3d at 1240–41. Also, Plaintiff’s contention that there is record evidence to support Plaintiff’s
reports of pain—and, thus, Dr. Zaman could rely on Plaintiff’s reports of pain in his medical source
statement—is unavailing because the Court must consider whether the ALJ adequately articulated
his reasons for discounting Dr. Zaman’s opinions and must not re-weigh the evidence. Dyer, 395
F.3d at 1212. Because the ALJ articulated his reasons for discrediting Plaintiff’s testimony, which
were supported by substantial evidence, Plaintiff has not demonstrated reversible error.
The ALJ’s Hypothetical to the VE
Finally, Plaintiff contends that, because the ALJ failed to weigh the opinions of Dr. St.
Louis, Dr. Bansal, and Dr. Montejo and sufficiently explain his reasons for according Dr. Zaman’s
opinions little weight (see supra § B), the hypothetical posed to the VE did not adequately reflect
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Plaintiff’s limitations. (Dkt. 24 at 20.) Therefore, Plaintiff argues, the VE’s testimony regarding
jobs Plaintiff can perform that exist in the national economy should not have been relied upon by
the ALJ to conclude that Plaintiff is not disabled.
When the ALJ determines that a claimant cannot perform past relevant work, then the
Commissioner must produce evidence that claimant is able to do other jobs existing in significant
numbers in the national economy given the claimant’s RFC, age, education, and work experience.
20 C.F.R. § 404.1560(c). The burden then shifts to the claimant to show that the claimant “is
unable to perform the jobs that the Commissioner lists.” Doughty v. Apfel, 245 F.3d 1274, 1278
(11th Cir. 2001). “[T]he Commissioner’s preferred method of demonstrating that the claimant can
perform other jobs is through the testimony of a [vocational expert].” Jones v. Apfel, 190 F.3d
1224, 1229 (11th Cir. 1999). A vocational expert’s testimony constitutes substantial evidence
when the ALJ poses a hypothetical question to the vocational expert “which comprises all of the
claimant’s impairments.” Wilson, 284 F.3d at 1227.
At the hearing, the ALJ asked the VE what jobs in the national economy could be
performed by a hypothetical claimant with Plaintiff’s age and educational and work history who
has the RFC to perform “sedentary work,” with the following additional limitations: needing an
assistive device to ambulate; being able to climb, balance, stoop, kneel, crouch, and crawl only
occasionally; never being able to climb ladders, ropes, or scaffolds; needing to avoid concentrated
exposure to extreme heat, cold, hazards, machinery, and heights; and being able to understand,
remember, and carry out simple instructions and simple, routine tasks. (Tr. 85–86.)
Plaintiff argues that the hypothetical the ALJ posed to the VE did not incorporate all of
Plaintiff’s limitations, yet Plaintiff does not identify any such limitations that the ALJ allegedly
failed to incorporate into his hypothetical. (See Dkt. 24 at 19–20.) See Freeman v. Comm’r, Soc.
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Sec. Admin., 593 F. App’x 911, 916 (11th Cir. 2014) (affirming the ALJ’s decision because the
hypotheticals posed by the ALJ were consistent with the RFC determination and adequately
considered all of [claimant’s] credible limitations). As determined above, although the ALJ did
not specify the weight he afforded to the opinions of treating physicians Dr. St. Louis, Dr. Bansal,
and Dr. Montejo, he summarized their treatment notes and relied upon them in reaching his
determination as to the credibility of Plaintiff’s pain testimony, which demonstrates that he
considered them in assessing his RFC. See supra § B. Finally, the ALJ’s decision to accord Dr.
Zaman’s opinions little weight was sufficiently articulated and supported by substantial evidence
and, therefore, “the ALJ was not required to include findings in the hypothetical that the ALJ had
properly rejected as unsupported.” Crawford v. Comm’r Soc. Sec., 363 F.3d 1155, 1161 (11th Cir.
Therefore, Plaintiff’s final contention does not warrant reversal because the ALJ’s
conclusion that Plaintiff had the RFC to perform jobs existing in significant numbers in the national
economy was supported by substantial evidence, namely the vocational expert’s testimony.
Accordingly, after due consideration and for the foregoing reasons, it is
The decision of the Commissioner is AFFIRMED.
The Clerk of Court is directed to enter final judgment in favor of the Commissioner
and close the case.
DONE and ORDERED in Tampa, Florida on July 22, 2016.
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Copies furnished to:
Counsel of Record
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